Drug use and the I-485

Section 3 of the I-485 -- asking about drugs.

I had a chance to help a fellow practitioner the other day, and I thought I would share his question so others might benefit, too!

You do a ton of litigation, and I also know you are helpful to newer practitioners. I'm a newer practitioner, so I hope you don't mind me asking a question about AOS. My question is about the I-485 question in Part 3.C.1.a. "Have you ever, in or outside the United States: a. Knowingly committed...a drug-related offense for which you have not been arrested." I am trying to figure out how it comports with INA 212(a)(2)(i)(II). That section deals with inadmissibility relating to "admits committing acts which constitute the essential elements of" a drug-related offense." Are these two related?

This all comes about because of a client's discussion with me. If a client tells you they used drugs, do you think you are obligated to check "Yes" to Part 3.C.1.a.? Or do you think "Yes" requires something more than just your knowledge the client used drugs?

Your question fits into the general category or “once the cat is out of the bag (to the lawyer), am I obligated to do something about it?” The answer is…sometimes.

Generally, in order for you to take action on what you client says, it needs to be clearly and unequivocally a violation of some rule or law. And even then, you are not obligated to disclose it; rather you cannot sign or submit something that you know contains a material misstatement. The distinction is important. What the client chooses to say at, say a interview, or open Court, is up to the client. However, you cannot submit, under your signature, or as a proffer, something you know to be false.

To bring this back to your question – merely using drugs may or may not be illegal back in this person’s home country. You are not a lawyer (presumably) from his/her home country, so you can’t say for certain whether his/her action rises to the level of requiring a “yes” answer to 3.C.1. By the way, 3.C.1 is absolutely NOT the same as INA 212(a)(2)(i)(II). 3.C.1 has a “knowing” requirement that is absent in 212(a)(2)(i)(II) – and that is a significant difference in the criminal world.

Again, back to your question – unless the individual indicated, “yes, I have knowingly committed a drug offense in my home country” the answer would be – “I can’t say whether that is a drug offense in your home country, as I don’t practice law there. You can answer this question “No” if you believe it is not an offense, or you can contact a lawyer in your home country to get information on whether this is an offense or not.”

As a practical matter, unless he was arrested, or charged, there won’t be a record of anything. The risk here is minimal (in terms of USCIS learning of his prior drug use, absent an arrest or conviction). Now, if you have a dummy for a client who intends to blurt out that they like to smoke weed and do crack back in Fez – well, all bets are off.

Do you have an immigration question? Ask us! We're happy to help. We've handled immigration defense and filing for many years -- and we're glad to bring our expertise to bear for your case. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq. Charlet Herr, Practice Manager
1-800-579-9864 admin@hanoverlawpc.com

ETHICS: When you need to let a client go...

A great question was asked about requirements of an attorney to maintain a client who was misbehaving. I responded as follows:

I have a current client who submitted an EAD application, against my explicit advice, through the help of his sponsor. Client was released on bond and is relying on the sponsor who is a well known individual in the community but who is not an attorney. I told the client that I would like to review any submission to USCIS before it is sent. I knew he was not eligible for employment authorization because he was not paroled and his asylum application has only been pending for 30 days, and I explained that to him until I was blue in the face! Client kept insisting that the sponsor knew what he was doing because he has “been doing this for 20 years.”

So, client went ahead and sent it anyway, then brought the documents to me afterwards. The information on the EAD application was not correct, including his current address and his basis for qualification. The sponsor also filled out the G-28 even though he is not an attorney or an accredited representative (I looked it up to make sure).

Client is in removal proceedings and I’m afraid that this type of application may result in a discretionary denial of his asylum application

I had a similar situation in a family law case in VA. Client decided to file a protective order against her spouse, didn’t tell us, and then refused to explain what the protective order was for – only that she was “told” to file it by a “good friend” who was a clerk at the Court. Completely wrecked our representation in Court and our attempt to work out a solution with the other side. Moral of the store – we fired her.

I teach new attorneys at my firm that (a) the client tells us what they want – what the end objectives are, and (b) we tell them what law and tactics we will use. If they don’t like the law/tactics, then they can go somewhere else. But the client cannot tell us what law/tactics to use, or try to strong arm the legal process themselves. Ever.

Your client is not cooperating with you, prejudicing his case, and potentially opening you up to false representation to the Court. Further, they are mocking your ability to strategize and actually move the case along in a proper manner. That would (and has in the past) infuriate me.

I would explain to him that he is paying good money to have you lead him through the immigration jungle. If he does not intend to follow your advice, you will refund any remaining monies in IOLTA (or operations) that have not been used and allow him to continue on his own.

Do you have questions about ethics or client management? Contact us! We're glad to chat. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com